JUDGMENT :

Order on the Recall Application No.2 of 2021

1. Civil Misc. Recall Application No. 2 of 2021 has been filed by the contesting respondent nos. 1 & 2 to recall the order dated 11.8.2021 passed by this Court in the present petition.

2. Today when the matter is taken up, a prayer has been made by Sri Kamlesh Kumar Mishra, learned counsel appearing on behalf of the respondent nos. 1 & 2 that the respondent nos. 1 & 2 do not want to press the present recall application.

3. The recall application is dismissed as not pressed.

Order on the Petition

1. The affidavit of service filed in the Court today is taken on record.

2. It is stated by learned counsel for the respondent nos. 1 & 2 that he does not propose to file counter affidavit in the present petition.

3. Heard learned counsel for the petitioners and Sri A.P. Tiwari Advocate along with Sri Kamlesh Kumar Mishra, learned counsel for the contesting respondent nos. 1 & 2.

4. The petitioners have preferred the present petition under Article 227 of the Constitution of India inter-alia with the following prayer :

"(1) Set aside impugned order dated 12.7.2021 passed by the learned Civil Judge, Senior Division, Gorakhpur in Original Suit No. 298 of 2021 (Pooja Educational and others vs. Rajesh Kumar Raina and others) only to the extent it observes that the application 49Ga' jointly filed by the petitioner no. 1/defendant no. 2 and respondent no. 3/defendant no. 3 under Order 7 Rule 11(d) of C.P.C. shall be heard and decided after hearing and disposal of interim injunction application 7C' filed on behalf of the respondents/plaintiffs under Order 39 Rule 1 of C.P.C. on the next date fixed in the case."

5. Facts in brief as contained in the petition are that an Original Suit No.298 of 2021 (Pooja Educational and others Vs. Rajesh Kumar Raina and others) has been filed by Pooja Educational and Social Development Trust and others in the Court of Civil Judge (S.D.) Gorakhpur. In the aforesaid suit, an application under Order XXXIX Rule 1 CPC being Application No.7 C for grant of interim injunction was also filed on 13.04.2021. Subsequently, another application was also filed on 22.6.2021 for grant of interim injunction till the disposal of application No.7C. During the pendency of the aforesaid application, defendants preferred an application as provided under Order 7 Rule 11 (D) of C.P.C. stating therein that the suit is barred by Order VII Rule (IV-A)) as per Suit Valuation Act as well as Court Fees Act. The aforesaid application was marked as Paper No.49 Ga. The aforesaid application was rejected by the Trial Court vide judgement and order dated 12.07.2021. Aggrieved against the aforesaid order, the petitioners have preferred the present petition.

6. It is argued by learned counsel for the defendants/petitioners that once an application has been preferred under Order VII Rule 11 (D) C.P.C. it is settled law that the court should decide the said application first and only thereafter to proceed with the injunction application. Learned counsel for the petitioners relied upon a Division Bench judgement of this Court in the case of Arun Kumar Tiwari Vs. Deep Sharma (First Appeal From Order No.3481 of 2004) decided on 15.2.2006. In support of his argument, learned counsel for the petitioners relied upon paragraph 11 of the aforesaid judgement, the same is quoted below:-

"11. It was contended that that in view of the spirit of the aforesaid provision it was very much necessary for the court to have first decided the matter of court fees ( when it had been raised ) and then it should have considered the injunction application. It was further submitted that it is virtually a dummy suit which has been filed at the instance of previous owners of the house by the plaintiff tenants because otherwise there was no necessity for the plaintiff tenants to challenge the sale deed executed by defendant no.1 in favour of defendant no. 5. He pointed out that no service could yet be effected upon the previous owners